Chancellor v. Gummere. the demised premises; the plaintiff then brought an action to recover the amount he had paid on the purchase. The agreement contained a stipulation that if either party should refuse to perform, he should pay the other £1000 as in the nature of liquidated damages. On the trial it was not shown that the defendant had sold the lease to the second purchaser for less than the plaintiff had agreed to pay. It was decided that the action was well brought. Lord Denman, in delivering the opinion of the court, said: "The ground upon which we rest this opinion is, that in the absence of any specific provision, the question whether the deposit is forfeited depends on the intent of the parties, to be collected from the whole instrument; but as this imposes on either party that should make default a penalty of £1000, the intent of the parties is clear that there should be no other remedy." He also said that the vendor might sue for the penalty, and recover such damages as a jury thought proper to award, but he could not retain the deposit, for that must be considered not as earnest to be forfeited, but as part payment. And then he adds: "But the very idea of payment falls to the ground when both have treated the bargain as at an end; and from that moment the vendor holds the money advanced, to the use of the purchaser." This, as it seems to me, must unquestionably be so under a contract which expressly reserves to the vendor the right, in case the vendee makes default, to rescind by reselling, and by which the parties stipulate that in case loss results to the vendor from the second sale, the vendee shall make it good. Such a provision for indemnity excludes the idea of forfeiture, or that the vendor shall have anything more than compensation. The principle established by Palmer v. Temple has been followed in this state. In Hoagland ads. Hall, 9 Vr. 350, the plaintiff sued on a check given to him by the defendant in part payment of the sum he had agreed to pay the plaintiff for certain chattels and the assignment of a lease; the defendant failed to pay the balance at the time agreed upon, and the plaintiff, after assigning the lease and making sale of the chattels to other persons, brought suit on the check. The court, in passing upon his right to recover, first affirmed the correctness of the principle Chancellor v. Gummere. laid down in Palmer v. Temple, and then added: "The right to payment of money arising from a sale can exist only when the title to the property sold has been or can be passed to the vendee; and after the vendee has refused to execute any part of the bargain, the vendor's whole claim to pay consists in his still being willing that such title shall pass." It was held that the plaintiff was not entitled to recover. The important principle established by the decision is this: that where a vendee refuses to fulfill his contract, and the vendor subsequently parts with the subject of the sale, and thus puts it out of his power to perform his contract, the only remedy left him, in such a condition of affairs, is an action against the vendee for the loss of the bargain. Even where the contract provides that if the vendee makes default he shall forfeit his deposit, and also be liable for any damages resulting from a resale, it has been held that if, on a resale, damages accrue, the vendee is entitled to have the amount of his deposit recouped against the damages, and the vendor is only entitled to recover the excess of the damages. Ockenden v. Henly, El., Bl. & El. 485. On the argument, my attention was called to an unreported case decided by this court at the May Term, 1873. The name of the case is Scheider v. Ramsey. The mortgage on which the suit in that case was founded was made by Catharine Ramsey to the complainant, to secure a debt due from John Ramsey to the complainant. The suit was undefended, and a final decree was made in due course. At the first sale John Ramsey, became the purchaser of the mortgaged premises. He was the real debtor. He purchased under conditions requiring him to pay ten per cent. of the amount of his bid, and they also provided that in case he did not complete his purchase the property should be resold, and if, at the resale, it was sold for less than his bid, with interest and costs added, he should be liable for the deficiency; and by a further provision of the conditions, the sheriff was directed to apply the ten per cent. paid by him to the payment of such deficiency. Ramsey paid the ten per cent., but did not complete his purchase. The mortgaged premises were again sold, and at such resale were bid off by another person for a sum Chancellor v. Gummere. $600 in excess of Ramsey's bid. The second purchaser paid the ten per cent., but did not pay the balance of his bid. A third sale was then made, and the price obtained at this sale was over $4000 less than at either of the previous sales. The last sale was completed. After applying the money raised by the last sale, a large balance still remained due to the complainant on his decree. The court directed the sheriff to bring both deposits into court, and they were, by order of the court, paid to the complainant. This disposition of the money was, unquestionably, as against both purchasers, both legal and just. Though the mortgaged premises were bid up, at the second sale, to a sum more than sufficient to relieve the first purchaser, the sale proved abortive and nothing was realized. In fact, no effectual sale was made. Besides, the purchaser at the first sale was the real debtor-the property of his surety had been sold to pay his debt -and the court having, through its officer, obtained possession of his money, was bound, on the plainest principles of justice, to apply it to the payment of his debt. Both his surety and his creditor had a right to have it so used. The rights of the complainant against the purchaser at the second sale were even more obvious. The deficiency between the price realized at the third sale and that at which he purchased, having greatly exceeded the sum paid by him on his purchase, and the directions of the conditions under which he purchased being that the sum so paid by him should, in case of a deficiency, be applied in payment of such deficiency, the court could do nothing but apply the money paid by him according to the plain direction of his contract. From this brief statement it will be perceived that the two cases are so radically dissimilar in all their essential characteristics, that it is impossible to decide the one now under consideration by the legal rules which controlled the decision of the other. The petitioner is, in my judgment, entitled to the order he asks. Mr. S. M. Dickinson and Mr. G. Collins, for appellant. In this case there was a foreclosure sale of land owned by Pedrick v. Pedrick. Isaac B. Parker. He was himself (by an agent) the purchaser of one parcel for $9,900, on which he paid ten per cent., or $990, December 21st, 1876, and agreed to pay the residue, and receive deed December 30th. He did not pay the rest of the price, and the property was resold September 18th, 1877, and bought in by the complainant for $10,500, leaving a large deficiency on the decree. The defaulting purchaser applied to have refunded his payment of $990. The vice-chancellor advised an order refunding the payment, and from that order this appeal is brought. Parker assigned his claim to Frederick Kingman, since deceased, whose administrator, therefore, is the party to the record. Ketchum v. Evertson, 13 Johns. 359; Green v. Green, 9 Cow. 46,51; Haynes v. Hart, 42 Barb. 58; Battle v. Rochester City Bank, 3 N. Y. 91; Haven v. Patterson, 43 N. Y. 218; Page v. Mc Donnell, 55 N. Y. 299; Seymour v. Bennett, 14 Mass. 266; Rounds v. Baxter, 4 Greenl. 454; Morton v. Chandler, 6 Greenl. 142 ; Smith v. Haynes, 9 Greenl. 128; Woodward v. Boston, 115 Mass. 81; Hansbrough v. Peck, 5 Wall. 497; Wheeler v. Mather, 56 Ill. 241. Mr. L. T. Hannum, for respondent. PER CURLAM. Decree unanimously affirmed for the reasons given by the vice-chancellor. SOMERS PEDRICK, appellant, 0. SARAH J. PEDRICK, respondent On appeal from a decree dismissing the appellant's petition for a divorce on the ground of adultery, advised by Vice-Chancellor Bird. Mr. J. J. Crandall, for appellant. Holcombe v. Holcombe. Mr. John Harris, for respondent. PER CURIAM, This decree affirmed for the reasons given by the vice-chancellor. For affirmance - THE CHIEF-JUSTICE, DEPUE, MAGIE, REED, SCUDDER, VAN SYCKEL, CLEMENT, PATERSON, WHITAKER-9. For reversal-DIXON, PARKER, BROWN-3. ELEANOR HOLCOMBE et al., appellants, υ. LEVI HOLCOMBE et al., respondents. On appeal from a decree advised by Vice-Chancellor Van Fleet, whose opinion is as follows: The evidence, viewed as a whole, leaves no doubt on my mind, that the testator, up to the time he was stricken with paralysis, was competent either to make or revoke a will. If he destroyed his will prior to July 12th, 1882, there can be no doubt that its destruction amounted in law to an effectual revocation. There is no direct proof of revocation. If the will was revoked at all, it was revoked by destroying it. No one saw it destroyed; at least, there is no proof of that kind in the case. The evidence of two witnesses puts the will into the possession of the testator about the middle of June, 1882, and there all further trace of it is lost. One of these witnesses swears that at the time the testator took possession of the will he said he intended to destroy it, and the same witness swears that the testator subsequently stated to him that he (the testator) had told a third person that |